Policies and procedures
About this policy
The decision to prosecute or not to prosecute is a serious step. However, fair and effective enforcement is essential to the maintenance of law and order.
We recognise that a prosecution has serious implications for all involved and have developed this policy so that we can make fair and consistent decisions in all cases.
In formulating this policy, account has been taken of the Code for Crown Prosecutors, the Regulators Compliance Code and Essex County Council’s Trading Standards Enforcement Policy.
In most cases there are 3 stages in the decision to prosecute:
Stage 1: the evidential test
If the case does not pass the evidential test, it must not go ahead, no matter how important or serious it may be. If the case does pass the evidential test, we must decide if a prosecution is needed in the public interest.
Stage 2: the public interest test
We will only start or continue a prosecution when the case has passed both tests.
Stage 3: the expediency test
If necessary, stage 3 is linked to the public interest test and is that provided by Section 222 (1) (a) of the Local Government Act 1972. This is sometimes referred to as the ‘expediency test’.
Essex Trading Standards will only start or continue a prosecution when the case has passed all the relevant tests.
The evidential test
We must be satisfied that there is enough evidence to provide a 'realistic prospect of conviction' against each potential defendant on each charge. Consideration must be given to what the defence case may be and how that is likely to affect the prosecution case.
A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged.
When deciding whether there is enough evidence to prosecute, we must consider whether the evidence can be used, is relevant and reliable.
There will be many cases in which the evidence does not give any cause for concern, but there will also be cases in which the evidence may not be as strong as it first appears. We must ask ourselves the following questions:
Can the evidence be used in court?
Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that evidence which seems relevant cannot be given at a trial.
For example, is it likely that the evidence will be excluded because of the way in which it was gathered or because of the rule against using hearsay as evidence? If so, is there enough other evidence for a realistic prospect of conviction?
Is the evidence reliable?
Is it likely that an admission or confession is unreliable, for example, because of the potential defendants' age, intelligence or lack of understanding?
Is the witness's background likely to weaken the prosecution case? For example, does the witness have any dubious motive that may affect their attitude to the case or a relevant previous conviction?
If the identity of the potential defendant is likely to be questioned, is the evidence about this strong enough?
We must not ignore evidence because they are not sure that it can be used or is reliable, but they must look closely at it when deciding if there is a realistic prospect of conviction.
The public interest test
By considering the factors listed below and applying them to the circumstances of an investigation, it should be possible to form an opinion as to how best a case might be dealt with.
However, the factors are not necessarily in order of importance and it is not necessary to score a minimum number of them before recommending a prosecution.
Indeed, it may be the case, for example, that a potential defendant has acted so fraudulently that this alone indicates that a prosecution is the only way ahead:
- any fraudulence, deliberateness, negligence or carelessness of the action in question
- any failure to heed previous advice given specifically to the potential defendant
- any cause or likelihood of substantial loss or prejudice to others
- any exposure to a serious risk to safety, wellbeing or health of the public
- any disregard for the law, even though appropriate notice has been given that legal proceedings will be considered in those circumstances (for example, after widespread publicity or business training seminars)
- any history of previous offending (for example, previous convictions, simple cautions (previously known as Home Office cautions) or written advice hand delivered or sent recorded delivery)
- any likelihood of offending continuing if no formal legal action is taken
- any unjustifiable or unjustified delay between the date of the alleged offence and the laying of information, unless it was attributable to the defendant, the matter only recently coming to light or the complexity of the investigation
- any likelihood of the same outcome being equally achieved by considering an alternative course of action. Consider simple caution, departmental caution or take no further action
- any obstruction of officers in their duties
- the circumstances of those affected by the alleged offence
- the circumstances of the defendant, for example, age or health
- whether the potential defendant has put right the loss or harm that was caused, however, the defendant will not avoid prosecution solely because they have made reparation
- Section 222 of the Local Government Act 1972 provides a power for local authorities to prosecute. In order to do so Essex Trading Standards must have regard to the ‘expediency test’. Where applicable, a prosecution can only take place where the local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area
Policy review date: April 2022Print this page